Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Nevada, Roger L. Hunt, District Judge, Presiding.
Before O'SCANNLAIN, SILVERMAN and GOULD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Silviano Rodriguez-Osorio appeals the 34-month sentence imposed following his guilty plea to unlawful reentry of a deported alien. Rodriguez-Osorio contends that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred in imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a) based upon a prior felony which the indictment did not allege, to which he did not admit, and which was not submitted to a jury and proven beyond a reasonable doubt. He also contends that Apprendi renders inapplicable Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that 8 U.S.C. § 1326(b)(2) is a sentencing factor and not a separate offense), because he did not admit to an aggravated felony at his plea hearing. His arguments are foreclosed by this court's recent decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), as amended (Feb. 8, 2001). United States v. Castillo-Rivera, 244 F.3d 1020, 1024-25 (9th Cir.2001).
The sentence is AFFIRMED. This matter is REMANDED to the district court with directions to correct the judgment of conviction to exclude the reference to 8 U.S.C. § 1326(b), consistent with United States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir.2000). United States v. Herrera-Blanco, 232 F.3d 715, 719 (2000).
AFFIRMED.